The question relates to the discoverability of social media information and whether having something on a ‘private’ page makes any difference. Case law has dealt with this too. My own summary is that any document relevant to civil litigation has to be disclosed by a party, wherever it is and however private it is. However, the opposing party will not be given free access to fish among private documents on mere speculation that there is something relevant there.

Once lawyers know this (and presumably most litigation lawyers now do), can they advise their clients to move stuff to private sections of their social media accounts to keep investigators and opposing parties from finding it outside the discovery process? May they advise clients not to post some kinds of stuff at all?

What would a prudent Canadian lawyer be allowed to do? Can a lawyer ever advise a client to delete material altogether, as distinct from moving it out of sight of public visitors?

It seems to me that deleting something from social media would be OK so long as the documents themselves (which may be pictures) are not destroyed, so that if there is a duty to disclose them, the party has not prevented him/herself from doing so.

I think the question is one of timing. If litigation is commenced or threatened, or reasonably anticipated, and a preservation duty thereby triggered, then advising clients to do anything other than to preserve evidence – social or otherwise, private or public – is unethical. But if a trigger to preservation has not yet been pulled, it is a good idea to advise clients on managing their social network profile. More lawyers should do it – it’s good proactive lawyering.

The limits on what you can advise clients to hide or delete may be a grey area, but I’d hope that the answer to the question of: “May they advise clients not to post some kinds of stuff at all?” is a resounding “Yes!”

Not posting regarding ongoing legal matters is — I’d suggest — similar to not talking to the media. Both are good strategies that counsel should advise their clients to follow. Save social media for cute cat pictures, not a forum to discuss who done whom wrong or how the client expects to fare at Court.

“Can a lawyer ever advise a client to delete material altogether, as distinct from moving it out of sight of public visitors?”

It may be worth noting that it’s may not be clear that the act of “deleting” content from social media platforms like Facebook will necessarily result in that content truly being “delete[d] altogether” in the plain meaning of the word (rendered unrecoverable).

By this I do not refer to laboriously recovering deleted data from physical media. European Union residents seeking access to their entire troves of personal information under privacy law suggest (and some have found) this includes items marked for deletion. For example:

As a way to compel Facebook Ireland to comply with existing EU law, Schrems filed 22 formal complaints with the Irish Office of the Data Protection Commissioner (ODPC) on August 18, 2011. Those complaints included charges that Facebook Ireland violated EU law by keeping records of “pokes” even after a user has deleted them, collecting data on non-Facebook users as a way to create “shadow profiles,” performing automatic tagging, gathering personal data via “Friend Find,” retaining records of deleted posts, retaining copies of deleted chat messages, retaining copies of deleted friends, and many others.

Storage costs being what they are, there can be compelling business reasons for social media platform providers to retain “deleted” content for significant periods of time in order to use it for various purposes other than public display.

How well-known are these practices? Does it matter? What are the potential implications of a good-faith belief, well-founded or not in actual fact, that “delete” does not truly mean “delete” online?

I wonder how long it will be before we see this understanding of the internet as something that “never forgets” tested in a legal context.

The discussion here has been about civil uses of information to be found (or concealed) on social media. Criminal law uses are also made, and lawyers’ duties will be similar – though one may ask whether removing evidence from where it might be found by law enforcement investigators is more unethical than removing it from the view of civil opponents.

Which makes me think of Ken Murray’s equisitely difficult situation in the Paul Bernardo case and the Court and LSUC decisions subsequently. Anyone interested in this aspect of the case might look at
“Obstructing the Bernardo Investigation: Kenneth Murray and the Defence Counsel’s Conflicting Obligations to Clients and the Court,” by Christopher D. Clemmer, (2008) 1 OHLRP 137.

In summary, a lawyer may advise that a client change privacy settings on the client’s social media pages so that they are not publicly accessible. Provided that there is no violation of the rules or substantive law pertaining to the preservation and/or spoliation of evidence, a lawyer also may advise that a client remove information relevant to the foreseeable proceeding from social media pages as long as an appropriate record of the social media information or data is preserved.